Both
Muslim and Christian leaders have been exerting relentless efforts in brokering
forgiveness and reconciliation for the former Derg inmates in Kaliti Prison, on
considerations of their repentance (and being terminally ill and geriatric, at
that). However, Tesfaye Habisso (habisso@yahoo.co.uk), former secretary-general
of the transitional government and a retired diplomat, observes that the heated
public dialogue and fiery controversy has in many ways enlarged the nation’s
societal cracks, and revealed an unfortunate fact: Ethiopia remains a deeply
divided country.

Clemency Power On Trial

The
news has precipitated mixed feelings amongst society
at large, both at home and abroad; it has angered
the relatives of the victims of the Derg’s
atrocities while rousing excitement and hope for the
perpetrators’ families.

The
families of the people who were slain or who
vanished during Mengistu Hailemariam's 1974-1991
dictatorship are vehemently protesting this proposed
clemency for the Derg officials through various
channels of communication. Sadly, for hundreds and
thousands of relatives of the victims of the “Red
Terror,” the wounds of the past remain bitter. This
is natural and as it should be, and no one can
downgrade, villify, or object to these feelings.

Yet,
there is no escape from confronting the brutal past
and overcoming traumas if a stable and better future
for all Ethiopians is sought. The issue of
forgiveness and reconciliation becomes imperative
for the entire society and should thus be
wholeheartedly supported by all farsighted citizens.

As
civil wars come to a close, rarely does the
cessation of violence mend relationships, mitigate
feelings of resentment and hatred, or suggest the
complete pacification of the root causes of
conflict. This phase of post-conflict reconciliation
is extremely difficult as individuals involved
within the communities may be at very different
stages in terms of their willingness to participate
in such a process. Reconciliation is also carried
out in a variety of different spheres and levels,
political and personal, economic and psychological.

Within
this broader category of reconciliation lies the
unique process of forgiveness. Often affiliated with
religious practices, forgiveness is a powerful
transformation in which parties release feelings of
resentment and bitterness towards the enemy in an
effort to focus on the future.

Criminal justice in any modern country constitutes
“a system of practices, and organisations, used by
national and local governments, directed at
maintaining social control, deterring and
controlling crime, and sanctioning those who violate
laws with criminal penalties,” according to legal
theorists as well as practitioners.

The
primary agencies charged with these responsibilities
are law enforcement (police and prosecutors),
courts, defence attorneys, and local jails and
prisons which administer the procedures for arrest,
charging, adjudication, and punishment of those
found guilty.

When
processing the accused through the criminal justice
system, government must keep within the framework of
laws that protect individual rights. The pursuit of
criminal justice is, like all forms of justice
(moral, social, and political), in fairness or due
process, essentially the pursuit of an ideal.

To
contend that “Clemency is a pillar of justice” (Mulugeta
Aserate Kassa, December 26, 2010, Tigray Online)
does not fully explain the breadth and scope of
justice in general and any criminal justice system
in particular; the latter encompasses more salient
points than the concept of clemency.

The
pillars of a criminal justice system include, inter
alia: community, law enforcement, prosecution, as
well as the courts and the correctional
institutions. If any one of these pillars is
dysfunctional, the criminal justice system as a
whole will pitiably become an ineffective channel of
justice, and will not be a crime deterrent either.

The
most important function of clemency and pardon is as
a last refuge for those who have fallen through the
cracks in the criminal justice system. It has
nothing to do with repentance or being geriatric
convicts receiving their due in prison, as explained
by Mulugeta Aserate Kassa. Whether his firm
assertion that the Derg officials have ever repented
about their gross human rights violations and crimes
against humanity during their long drawn-out trials
and court proceedings is uncertain, but they totally
and vehemently objected to the charges.

They
have appealed the verdicts of the High Court; taken
their cases all the way to the Supreme Court and
finally to the Cassation Bench, the judicial court
of last resort. They consistently denied the charges
levelled against them, individually as well as
collectively.

If the
“repentant and geriatric Derg officials” recently
decided to go to the extreme position of repentance,
it is just like a wrestler who, having been
overwhelmed and defeated by his opponent and seeing
no escape route from being hurt and no end to his
suffering in sight, indicates his submission by
“tapping out,” tapping a free hand against the mat
where the wrestling match is held. Nobody in her
right mind would believe that such repentance is
really sincere nor that these are deeply felt
sentiments coming from their hearts at last.

Clemency and pardon cannot be exercised for
political considerations. Considerations of
religion, class, colour, or political loyalty are
irrelevant (and are inherently fraught with
discrimination). It has occasionally been believed
righteous to tender clemency in deference to a
widely spread or strong local expression of public
opinion, on the grounds that it would do more harm
than good to carry out the sentence if the result
was to rouse sympathy for the offender and hostility
to the law.

This
view has serious implications. Public opinion and
especially its local expression are fleeting and
fluctuating. It can be manipulated and roused by
injecting into them strong doses of emotional and
political elements. In addition, there can be
equally strong contrary public opinions.

The
granting of clemency solely on the grounds that a
certain section of the population or a certain
region of Ethiopia will go up in flames if the
convicts are kept behind bars for the rest of their
lives smacks of undue pressure. It is almost
tantamount to blackmail.

When
trying to determine the limits imposed on the
pardoning power of the Constitution, it would be
helpful to establish what that power was designed to
accomplish. Regrettably, there is no consensus
regarding the purposes the pardon does or should
serve.

A
pardon may only appropriately be issued when justice
would otherwise not be served, either because the
sentence was too harsh or because the person was
wrongly convicted, a law professor suggested.
Pardons which are not “justice enhancing,” but
instead promote other purposes, should not be issued
because their issuance would undermine, rather than
promote, justice, he argued.

However, where there is good reason to believe that
an innocent person was convicted, a law was applied
inappropriately, or a sentence was determined
contrary to the interest of justice, executive
clemency is the only redress. The power of an
executive or president to grant relief to convicts
ought to be used as a check against injustice.

Unfortunately, the far more common use of the pardon
and clemency power is to confer forgiveness and
mercy upon those who have confessed to their crimes,
served time, and convinced a president or an
executive branch chief that they have been
rehabilitated (there is also the more corrupt use of
the power: as a favour to fallen political cronies).

Clemency must be exercised on definite principles.
Justice and the rule of law must not be sacrificed
at the altar of sheer expediency and speculative
political considerations and likely fallout.

Few
would dispute the statement that both justice and
forgiveness rank among mankind’s most exalted
virtues. Yet, their starkly conflicting natures are
clear and evident.

If
justice is defined in its most popularly understood
form to mean “to render to each his due,” and
understand mercy to involve some measure of
forbearance or leniency in punishment towards a
guilty party, the two ideas strike one as
contradictory at their very cores.

How can
each be rendered his due if the consequences of his
actions are withheld? How can we ensure the
realisation of justice if some misdeeds are to be
pardoned without due reckoning? How can equity and
clemency be reconciled?

In
Ethiopia, this matter presents itself as more than
just theoretical inquiry. It is a pressing, concrete
concern impacting society as a whole. Over the past
few months, religious leaders of the country, both
Christian and Muslim, have released a proposal
suggesting that Girma W. Giorgis, president of the
country, issue “yiqirta” (forgiveness) and “erq”
(reconciliation) to the “repentant and geriatric
Derg officials” in Kaliti Prison. They include the
elderly, the terminally ill, and those who are
considered rehabilitated to the extent that they
pose no threat to society.

Most
notably, the document proposes that the forgiveness
and reconciliation should extend to apply to many of
the individuals currently imprisoned and serving
life sentences for committing a wide range of human
rights violations and crimes against humanity during
the military regime of Mengistu Hailemariam (Col).

To
understand the depth of the controversy surrounding
this issue, it must be viewed in its full context.

The
military toppling of Emperor Haile Selassie’s
monarchical regime in February 1974 represented a
watershed in the country’s history. It instantly
divided the population between those who supported
the overthrow of feudal monarchy and struggling
government, and those who opposed military rule and
the overthrow of the monarchical system.

Subsequently, these rifts were deepened and inflamed
with the discovery in the 1990s of the widespread
violations of human rights and crimes against
humanity that occurred under Mengistu.

As
reflected in their document and explained by Hagos
Hayyish, chairperson of the Main Committee on
Forgiveness and Reconciliation and spokesperson for
the religious leaders of Ethiopia, the latter
believe that an issuance of forgiveness and
reconciliation would represent a significant step
towards national reconciliation and reunification,
helping to heal the wounds and divisions that
stubbornly linger on from the days of the regime.

Reflecting the idea of a justice that is more
restorative than retributive, the document
emphasises the compatibility of justice and
forgiveness; while condemning any abrogation of the
rule of law and indicating the importance of
ensuring the rule of justice and safeguarding the
rule of full human rights from crimes against
humanity, the religious leaders believe that steps
can be taken for clemency.

The
document appeals heavily to Ethiopia’s cherished
Muslim and Christian identity and religiosity,
beseeching citizens to look beyond “judicial orders
and their interpretations,” to the teachings of
Christ and Mohammed, which affirm that “the logic of
forgiveness is the only one that can heal wounds,
return confidence, and inaugurate new times.”

For
these religious leaders, a fractured and divided
Ethiopia can be made whole again only through the
process of forgiveness and reconciliation. They
believe Ethiopia’s people must be able to
demonstrate a fraternal spirit, and the ability to
make decisive gestures of reunion and reconciliation
if they hope to successfully rebuild their country
and pave the way for a better future.

Certain
portions of the population have been very supportive
of the proposed measures, stressing its importance
in the process of forgiveness, reconciliation, and
unification. Among them are the families and friends
of the Derg officials, including the retired
military and other members of the public at large,
who support the proposal advising religious leaders
to go ahead with pursuing and insuring the speedy
implementation of forgiveness and reconciliation,
and to ignore the “improper and offensive pressure
from those who, selfishly, insist in perpetuating
hate and division among Ethiopians.”

The
government should distance itself from its former
policy of retribution and punishment, and “adopt a
more wise and just resolution in this transcendental
matter that affects the nation’s soul,” allowing the
country to join together and “face its declared
transformation plan and Ethiopia’s Renaissance of
the 21st century in unity,” these people said.

Unsurprisingly, the proposal has been met with
significant criticism from Ethiopian groups at home
and abroad, indicating that a general clemency to
the Derg convicts would violate victims’ rights and
breach international law. From a more personal
standpoint, many Ethiopians reject the claim that it
would serve any reconciliatory or healing function.
They doubt whether authentic forgiveness would ever
occur.

How is
it possible to agree on a bilateral procedure of
conscious participation by both the victims and the
perpetrators? Even then, how could it be possible
for both sides of the conflict to be present
together in one place and to listen to one another’s
side of the story, the story of the victimisation of
the vanquished, admittance of guilt and apologies of
the perpetrators, as well as a sign of acceptance by
the victims, so that holistic transformation could
occur for both sides?

Many
believe that a pardon for people like Melaku Tefera,
Legesse Asfaw, and the other convicted violators of
human rights would serve to further aggravate
tensions within the country, and reopen wounds that
have begun to heal. Many individuals mention that
Mengistu Hailemariam, Melaku Teferra, Legesse Asfaw,
and Petros Gebre are despicable human beings they
have every right to hate and never to forgive.

Some
even voice the opinion that the pardon indicates a
significant sacrifice of justice, and, rather than
pacify, disturbs social life to achieve the opposite
of what is supposedly desired: Stability, peace and
tranquillity.

Opponents of the pardon, point to the fact that the
process of justice has been significantly lacking in
Ethiopia, with no compensation for the victims and
minimal convictions (as many notorious and ruthless
henchmen of the Derg era have escaped arrest and
prosecution and are now residing in foreign
countries) and light sentencing for some of the
perpetrators.

An
invigorated approach to compensation for the already
disadvantaged victims is necessary for
reconciliation, not “yiqirta” and “erq,” which would
tip the balance even further in favour of those
guilty of crimes against humanity.

While
the Ethiopian government has not shown any public
reaction to the proposal made by the religious
leaders, a debate is raging on its content and
scope. It appears that the document, composed with
the intention of forgiveness, reconciliation,
reunification, and healing persisting wounds and
national divisions, has in many ways highlighted and
accentuated the continued fragmentation of Ethiopian
society.

The
heated public dialogue and fiery controversy has in
many ways enlarged the nation’s societal cracks, and
revealed an unfortunate fact: Ethiopia still remains
a country deeply divided.

Perhaps, the religious leaders’ proposal is
mistaken, and “yiqirta” and “erq” are neither timely
nor appropriate courses of action to bring about
forgiveness and reconciliation, reunification and
resolution at present. It seems that the country and
its citizens are not ready to take the leap towards
forgiveness and reconciliation with the convicted
Derg era officials; more time must pass, and justice
must be allowed to run its course.

However, someday, hopefully, Ethiopia will be forced
to face its past, reconcile its differences, and
erase the lines that now divide. Only time will tell
when and how this drama will unfold.

Tesfaye Habisso (habisso@yahoo.co.uk),
Former secretary-general of the transitional
government and a retired diplomat